Public Law Coursework 2: Examine a number of ways in which the United Kingdom Constitution is a) similar and b) different to other constitutions.

Hardeep Kaur Lotta

LLB Law

Group: M Tutor: J.Wood

The term constitution relates to a collection of rules that governs the government. Its purpose is to control the relationship between individuals and the state. A constitution prevents confusion concerning the roles of the different state institutions. The constitution “reflects the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the socio-political context in which it operates.”

Majority of constitutions are written down in a codified document. However, United Kingdom does not have one formal document, which is known as its constitution, this makes it appear to be a unique feature. This rare feature that the UK has is shared with two other countries, which are New Zealand and Israel.

To find the UK constitution it is necessary to look at numerous sources such as in legislations, case laws, international laws, constitutional conventions, European community law and political practices. As the UK has no set written document controlling the government where a sovereign legislature body controls it, which is the superior law making body. The countries which are the legislative bodies concerned with the UK are the Northern Ireland, Scottish and Welsh local governments.

To uncover which legislation is of constitutional significance, it is necessary to refer to Statute Law. The statute law affects the powers of the state, which it relates to. The UK is affected by the European Communities Act 1972, this act by parliament made community law superior to domestic law when the UK joined the European Community. As a result the statute law has constitutional significance.

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Case Laws that are of constitutional significance as the courts derive their own interpretation of statutes from them. This was demonstrated in the case of Entick v. Carrington (1765) 19 St. Tr. 1029. The courts held in this case that the government does not hold the power to break the law including when citizens of the state are involved. The most significant impact on the UK is the European Community Law. This law gave courts the ability to question an Act of parliament if it did not follow the European Community law. The landmark case that illustrated this in practice was Factortame Ltd v. Secretary of State for Transport [1991] 1 All ER 70. The courts held that the Merchant Shipping Act 1988 proved to be inconsistent with the European Legislation. This resulted in the individual receiving court victory over the state regardless of the state being supported by the domestic legislation.

To underpin the fundamental sources of the constitution they can be found by revising the theory of Dicey, a professor of law who formed the Rule of Law.

This law sets down the principles that government are required to adhere to when governing their country. The UK has a limited monarchy as the head of state is the Queen and her ministers mainly advise her. Dicey has three principles, which begin firstly with that the regular power predominates over arbitrary power. Secondly he stated that everyone should be treated equally before the law. Dicey third principle deals with individual rights, which the courts interpret to form the constitution.

With regards to the courts procedure the Law Lords sit as the Judicial Committee of the Privy Council, which hear appeals from jurisdictions other than the courts of England and Wales. The Privy Council is the final court of appeal for some former colonial countries such as Jamaica and Barbados.

Another fundamental source of the UK constitution is that of Parliamentary Sovereignty. This means that parliament can make any law it chooses and is not required to adhere to the Rule of Law. Dicey created a further three principles on Parliamentary Sovereignty, which highlights the fundamental aspects of the UK constitution. The first principle states that the parliament can proclaim any law it chooses. The second is that judiciary are unable to challenge parliament or any acts created by it. Dicey third and final principle stated that parliament is unable to bind its successors or entrench legislation. The nature of the UK constitution consists of an unwritten and uncodified written document, this means it is flexible and it does not consist of entrenched constitutional rules or principles or restraints on amendments. An instance where this was demonstrated was in the case of Burmah Oil v. Lord Advocate [1964] AC 75 and the War Damages Act 1965. Parliament passed the War Damages Act, which overruled the judiciary. British constitution is only made possible due to the un-codified nature of the UK constitution and is one of the fundamental principles of the British constitution, which makes it different to the constitutions of other countries in the world. The UK constitution compared to the United States and Australia demonstrates flexibility, which is established as an advantage for the UK. American constitution is in a written format and it dictates to congress the limits of its power and prevents it from passing certain laws because they would e unconstitutional, but in the UK no law can be called unconstitutional because there is not one codified document called the constitution which tells the courts which laws would be constitutional and unconstitutional. Every country has their specified routine with regards to amendments such as “The federal Commonwealth of Australia Constitution Act 1900 specifies the procedure to be adopted for its own alterations” and the method in which a Bill is amended has a procedure for the UK which has proved to be easier than that of Australia which in 90 years has had 42 proposals for amendments of which only 8 were successful. Due to this it has been said that Australia is a frozen continent

The final fundamental aspect of the British constitution is the separation of powers. The division of powers between central government and individual states which make up the federation, in countries such as United States of America, Canada, Australia, and Malaysia. This is the concept that the three functions of the government are carried out by three different bodies. The legislature, executive and the judiciary, which should all, are independent and there should not be any repeat of personnel. In the USA the president is the executive, congress is the legislature and the Supreme Court is the judiciary, and these three institutions are completely separate and independent of one another. This was demonstrated under the office of President Clinton, who was a democrat, and congress, which had a republican majority.

Here no legislation was difficult to pass because the president could veto legislation and put forward congress and the president cannot pass legislation without the support of congress and the Supreme Court can overrule legislation, which is deemed to be unconstitutional.

In the UK this separation is not as straight forward as the government is the executive, Parliament is the legislature, and the court system is the judiciary. In the UK the House of Lords is the highest court in the land. This may seem similar to the American system of the government sits in Parliament, and has a majority of members, it is member thus possible for the controlling government to force legislation through parliament using its majority to their advantage.

The court system is independent but, due to the doctrine of Parliamentary Sovereignty, it is unable to question and Act of Parliament which was evident in the case of Duport steels Ltd v Sirs [1980] 1 WLR 142. Where the Courts had no choice in the matter and there was no room for the courts to decide otherwise as they are unable to set-aside acts of Parliament. This breech of separation of powers is possible due to the un-codified nature f the British constitution.

The European communities act 1972 has become part of the British constitution. In a loss of some of parliaments sovereignty has brought Britain closer to a constitutional terms compared to other countries of the European Community who have written a constitution and European Union laws, Factortame case, overrule even these constitutions.

In British constitution the lack of a codified constitutional document is a feature shred only by Israel and New Zealand. Parliamentary sovereignty is a unique concept. The breech of the separation of powers, which occurs in the UK, is a feature which makes the British constitution stand out from those of other countries, such as France and the USA, as governments control over parliament.

The constitutions of Ireland, France and the USA are well known and easier to find as they have a written constitution. They must all follow the rule of law.

Bibliography:

E. McKendrick, “Contract Law text cases and materials,” Oxford University Press, 2005.
“The Oxford Dictionary of Law,” Oxford University Press, 2003.
H. Barnett, “Constitutional and Administrative Law,” Cavendish Publishing, 2004.
D. Hoffman etl. “Human Rights in the UK, an introduction to the human rights act 1998”, Pearson Longman, 5th Edition, 2003.